Knox v. Bissell Companies, Inc.
Filing
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ORDER re 24 Objection to Memorandum and Recommendations, ORDERED that the Clerk of Court calendar Plaintiffs Objections (#24) for the next available Charlotte civil motions day. Signed by District Judge Max O. Cogburn, Jr on 06/03/2015. (Pro se litigant served by US Mail.)(jlk)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00424-MOC-DSC
DEBORAH KNOX,
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Plaintiff,
Vs.
BISSELL COMPANIES, INC. aka
BALLANTYNE HOTEL & LODGE,
Defendant.
ORDER
THIS MATTER is before the court on Plaintiff’s Objections (#24) to the magistrate
judge’s Memorandum and Recommendation (#23). Plaintiff, who is proceeding pro se, makes no
specific assignment of error in her objections to the Memorandum and Recommendation, but
instead repeats much of the facts surrounding her employment history with Defendant. In the
Memorandum and Recommendation (#24), the magistrate judge recommended dismissing
Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff filed her initial complaint in this action on August 1, 2014, asserting claims
based on age discrimination and an injury she allegedly sustained at work (#1). In response to
Defendant’s Motion to Dismiss (#7), Plaintiff filed a document styled as an “Amended
Complaint” on October 27, 2014. (#12). On December 8, 2014, the court construed Plaintiff’s
filing as a motion to amend her complaint and ordered her to file an amended complaint within
thirty days (#14). Plaintiff filed her Amended Complaint (#15) on January 8, 2015, which
generally alleges that Defendant failed to accommodate her disability and refers to an injury
sustained at work that left her unable to work without restrictions. Plaintiff’s Amended
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Complaint is much less detailed than her original complaint and does not make any reference to
age discrimination. As the magistrate judge advised Plaintiff, see (#14), “an amended pleading
supersedes the original pleading, rendering the original pleading of no effect.” Young v. City of
Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001). However, it is apparent that Plaintiff attempted
to amend her complaint by incorporating all previous facts and allegations made in the original
complaint.
Upon review of the record in this matter, and in light of the latitude extended to the
pleadings of pro se litigants, see Haines v. Kerner, 404 U.S. 519, 520 (1972), the court believes
that a hearing on Plaintiff’s objections to the magistrate judge’s Memorandum and
Recommendation is appropriate and will therefore schedule such a hearing. Plaintiff is advised
that she must appear at the hearing, the time and date for which will be indicated in ECF after the
entry of this Order. At the hearing, Plaintiff shall be prepared to address the court and explain the
legal claims she is attempting to bring against Defendant in this case (i.e. for employment
discrimination pursuant to the Civil Rights Act and/or the Age Discrimination in Employment
Act, for failure to accommodate disability pursuant to the Americans with Disabilities Act,
and/or for a work-related injury, which appears to be governed by the North Carolina Worker’s
Compensation Act). At the hearing, Plaintiff must also explain how the facts alleged in the
original and amended complaints support those claims and articulate legal reasons why her
complaint should proceed in court at this point. Plaintiff is advised that the standard that the
court will use to determine whether to dismiss her claims is that articulated by the magistrate
judge in his Memorandum and Recommendation. See (#23 at p. 2-4 (explaining what Plaintiff
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must show in order to survive a motion to dismiss)). The court therefore enters the following
Order.
ORDER
IT IS HEREBY ORDERED that the Clerk of Court calendar Plaintiff’s Objections
(#24) for the next available Charlotte civil motions day.
Signed: June 3, 2015
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